Unless and until either the General Assembly repeals or suspends the marriage law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the (Pennsylvania Defense of Marriage Act) in its entirety is to be obeyed and enforced by all Commonwealth public officials.

That brief summation at the end of an opinion issued Thursday by a Pennsylvania judge ordering a county clerk to stop issuing marriage licenses to same-sex couples is the closest today’s action comes to weighing in on the legal validity of the licenses that have already been issued.

Commonwealth Court President Judge Dan Pellegrini

Commonwealth Court President Judge Dan Pellegrini on Thursday ordered Montgomery of County Register of Wills H. Bruce Hanes to stop issuing marriage licenses to same-sex couples. Since he began to do so in July, declaring the state’s marriage law unconstitutional, Hanes has issued more than 160 licenses. Several of the couples have even wed in Pennsylvania.

The state Department of Health had petitioned the court for a mandamus action to stop Hanes.

In a narrow interpretation of the opinion, Pellegrini basically said that no other court clerk should decide to buck state law and do what Hanes did, said John Culhane, professor of law at the Widener University Law School. But a broader analysis of the opinion, he said, leaves the whole question of the validity of the documents unanswered.

“We have to wait and see,” Culhane said. “It think the likeliest result is that those marriage licenses will not be valid unless and until the law is repealed or the law is declared unconstitutional. Even then it’s not completely clear because the licenses were issued at a time when the law was being enforced.”

A question often raised any time laws are thrown out, Culhane said, is whether the decision is retroactive - the usual assumption being that they are not retroactive unless a court specifically says that it is.

“Let’s say a court could say the Pennsylvania law was unconstitutional but I doubt a federal court would be comfortable declaring Pennsylvania law unconstitutional retroactively,” Culhane said. “If the marriage license are invalid now, it’s not clear that even a declaration of the law being unconstitutional would make them valid retroactively.”

For now the litmus test for the marriage licenses issued by Hanes will likely come at the hands of the couples themselves. If an when, for example, a couple tries to file a joint state tax return or file for a divorce, the state will have a decision to make.

“To get a divorce you have to have a marriage,” Culhane said. “In that context, will the court allow them to divorce?”

A similar scenario played out in 2004 in San Francisco when city officials there began marrying gay and lesbian couples after they deemed the California defense of marriage law unconstitutional. The California Supreme Court eventually took the case and annulled all the marriages. In 2008, the couples remarried, once the Supreme Court had agreed with the original local interpretation. Marriage equality experts widely viewed it as a showdown between the branches of government.

A similar showdown is happening in New Mexico, where local clerks have done what Hanes did, although the lower courts appear to be taking the opposite approach, indicating that the county officials can act if they feel a law is unconstitutional. New Mexico does not have a marriage law. Its state Supreme Court will be holding a hearing in October.

"New Mexico stands alone," Culhane said. "You might get a different result there."

Nils Hagen-Frederiksen, a spokesman for the Office of General Counsel, said he didn’t have an answer as to the validity of the marriage license.

“That’s outside this particular court case. To the extent that there’s any confusion about the documents that may have been issue caused by Mr. Hanes. That’s the issue he has generated,” Hagen-Frederiksen said. “That’s confusion that he is responsible for.”

The state, he said, simply asked the court to rule on whether a local official had the authority to disregard state law.

“The legal question about the documents that he may have issued, that’s not answerable,” Hagen-Frederiksen said.

Pellegrini, in his ruling today, wrote that Hanes did not, in fact, have the power to decide on his own whether Pennsylvania’s same-sex marriage ban violates the state constitution.

Hanes “admittedly failed to comply with his mandatory ministerial public duty under the Marriage Law,” Pellegrini wrote.

He wrote that Hanes did not have the power or authority, “even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner” as to effectively abolish or suspend the law, which is presumptively constitutional until declared otherwise by the courts.

Pennsylvania General Counsel James D. Schultz said Pellegrini had addressed the key question in this case: whether any local official had the ability to decide which laws to uphold and which laws to reject based on their own personal legal opinion.

“We appreciate the court’s consideration of the legal and social complexities of this issue, along with the future ramifications – not just in this individual case, but in all types of decision made by public officials,” Schultz said.

“We respect the interests and dignity of all the parties involved in this case, but we are a government of laws and it is important that all office holders across the state enforce those laws uniformly.’’

For now, Ellen Toplin, who wed Charlene Kurland, shortly after acquiring a marriage license from Hanes, said that while disappointed by the court’s decision, she was proceeding with the assumption that their marriage license - and marriage - are legal.

“We’re not the judge, the juries or lawyers,” said Toplin of Montgomery County. “It it was a disappointing decision but we believe our marriage license is valid. To our knowledge no court has invalidated it. We believe that under the Pennsylvania Constitution, the current law is unconstitutional and we believe under federal law we have the right of equality. We intend to move forward and we will consider our legal options.”

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